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Hemmerich v. Union Dime Savings Inst.

Supreme Court of New York, Appellate Division

May 5, 1911

ANNA HEMMERICH, by KATE HEMMERICH, Her Guardian ad Litem, Appellant,

APPEAL by the plaintiff, Anna Hemmerich, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of February, 1909, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the complaint at the close of plaintiff's case.


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Harry A. Gordon of counsel [Oscar Englander, attorney], for the appellant.

C. N. Bovee of counsel [Frederick C. Tanner with him on the brief], Ritch, Woodford, Bovee & Butcher, attorneys, for the respondent.


This is an action brought by an infant by her guardian ad litem, to recover from the defendant, a savings bank, a deposit of $1,000 made therein by her father, in trust for her. The bank refuses to pay over the deposit on the ground that the legal title is in the father, the trustee, who is not a party to this action.

The complaint having been dismissed upon plaintiff's case the facts stand undisputed. Plaintiff's father received a legacy of $10,000 from his mother in Germany during the spring of 1907. On March seventh of that year he opened three accounts with defendant, one for $2,000 in his own name, one for $1,000 in his own name as trustee for a daughter Margaret, then nine years of age, and one for $1,000 in his own name as trustee for his other daughter, the plaintiff Anna, then eleven years of age. On July eighteenth following he drew out the last of his personal deposit, closed the account and returned the pass book to the bank. The two trust accounts he left intact. Since that time, so far as appears, he has not been heard of. His wife, the guardian ad litem, testified that she last saw him sometime in April, 1907. It is not alleged or claimed that he is dead.

The circumstances attendant upon the making of the trust deposit by the father are testified to by the mother and the infant plaintiff. The latter said: 'I remember my father coming home the day in March. It was in the afternoon, on March 7th, 1907. My sister Margaret was present at the time besides my father and I, also my mother. * * * My father said, here is a present of a thousand dollars each; I deposited the money in the bank for you, and here is your bank book. He at the time handed me this book (Plaintiff's Exhibit 2). At the time that he handed me the book he handed my sister Margaret her book. I gave my book to mamma, I said,

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'Mamma, here, keep it for me.' * * * He did not take it back, he handed it to me and then I gave it to mamma. My father did not take it back at all; he just handed it to me.' The mother corroborated her daughter as to the statements and acts of the father and continued: 'They gave me the two books to put away for them. * * * I put them in my drawer and locked them up. * * * My husband never had the key, * * * and I have had the books ever since; my husband never had them. He never asked me for them at all. * * * He had previously told me that he intended to deposit $1,000 in the bank for the children. * * * On the morning of the 7th he told me he was going to the bank, the Union Dime Savings Institution and he was going to put $1,000 in trust for each of the children. * * * He said he was the trustee, and he was to be the trustee; he told me that in the morning before he went away.'

It is agreed by both parties that by the opening of this account in the manner and form described above and in the delivery of the bank books with its accompanying statements the father created an irrevocable trust for the benefit of plaintiff. The plaintiff, however, contends that in creating this irrevocable trust the father made an absolute gift to her; that as a result she then and there became vested with full legal title to the money deposited and alone has the right of dominion thereover; that the bank has become a principal debtor to her and as such should be required to pay over to her upon demand and upon the presentation of the bank book the money so deposited with it. The defendant, on the other hand, claims that although it was an irrevocable trust it was not an absolute gift. It continued to be a trust with the father as trustee and so long as he lives the bank's obligation is to him as the depositor and no disposition of the fund can be made so long as he continues to be trustee, at least without notice to him and opportunity afforded him to be heard. In other words, the trust cannot be destroyed in the absence of the creator thereof.

Appellant in support of her position cites Matter of Totten (179 N.Y. 112). In that case the court lays down a carefully formulated rule relating to deposits in trust. Otherwise the case is not in point. The rule is: 'A deposit by one person of

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his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the pass book or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of ...

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